A few words about copyrights

The most common question we've been asked since this website went online goes something like this: "Our hometown theater group/radio players/friends wants to perform (insert script name here) in front of a few people/massive crowd/radio station. Is this script copyrighted and will we get in trouble if we perform it?"

It's a measure of something -- the increasing value of intellectual property; the litigious nature of current society; the confusion of copyright laws; the ubiquity of the Internet -- that this has become the most common question. It's a good question and one that deserves discussion. But can we first even answer the question "is this script copyrighted?"

Used to be that our answer to the question "Is this copyrighted?" was "it's hard to tell, but probably not." Copyright law has changed several times since this site went online, essentially in order to extend copyrights on existing works. One short answer often heard is that "anything published after 1923 is still in copyright." Not true. In fact, the more accurate statement is "anything published BEFORE 1923 is Public Domain." Works from the OTR era had copyrights that lasted 28 years with the chance for a single extension. Copyright law changes since then mean if they filed that extension, their works remain copyrighted for decades to come...but if not, their works entered public domain.

But now we lean towards a different answer: "easy to tell, and probably YES." I'm no lawyer, and this is no legal advice, but after reading fresh materials, a new distinction has cropped up: the "unpublished" work.

The majority of radio scripts appear to qualify as "unpublished works," and -- here's the nub -- unpublished works have copyright protection for 70 years beyond the death of their author.

"Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909. The 1976 Copyright Act defines publication as follows:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

It is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phonorecords are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display."

It seems to us, based on these governmental words, that the average mimeographed radio script was never published in the generally understood sense, nor was it's original performance considered publishing. So unless its author died before 1938, that script is still under copyright.

In fact, any original reference recording can also arguably be understood to be under copyright too, as an unpublished recording. On the other hand, many shows were syndicated via recordings, and it can be argued these recordings qualify as "publication" as they were issued to a third party for the purposes of further public performance.

But don't be too quick to connect a radio script's copyright to the recording. Performances and scripts are two separate things. The script of a Shakespeare play is independent from any given performance. Securing the right to a new performance is not the same as the right to rebroadcast an existing performance.

In any case, this protection-because-unpublished angle reverses the situation from what we had gotten used to. Now, those few scripts published in books ("Best Radio Plays of 1938" for example) have a greater chance of being in the public domain than the scripts which weren't selected. If the book copyright was not renewed, its scripts should be public domain.

Many people feel these unpublished, probably-untraceable scripts should fall under the category of "orphaned works" , abandonded by their owners and with little monetary value, and thus should be made more available for use, reuse, and adaption. Various proposals have been put forward, and much electronic ink has been written on the subject (just Google "orphan works" ) Here's one article that seems to us a sane overview of the situation: http://maradydd.livejournal.com/374886.html.

Should legislation ever come up to create this class of "orphaned works" it would be something worth watching, and perhaps supporting.

So, it seems most scripts are copyrighted. Can you perform them? Sure -- if you and the author/owner come to an agreement. That agreement can be "feel free" as it was, once upon a time, when we made a phone call to the late "War of the Worlds" author Howard Koch. Or a smallish payment to his estate as his estate's lawyer now asks for. Or the signing of an agreement with Conde Nast lawyers that the Shadow episode you'll perform is not for profit nor for broadcast.

Or they could say "no". Or you can't find them. Or there's hardly any way to know. What then?

Over the years, lacking the understanding we now have, or the resources to track down rights-holders, we have generally counseled small theater groups to perform their (free) shows to their (small) audiences. And to plead ignorance and ask forgiveness if someone complains. It is our belief that the benefits of keeping OTR performance alive outweighs any "brand dilution" when a show is performed -- in fact the opposite. How does "Jack Armstrong" remain the "All-American Boy" unless people perform and hear his exciting adventures? It may not be legal, but it felt noble.